U.S. House of Representatives Reintroduces Full Holman Rule for 115th Congress

On January 3, 2017, the United States House of Representatives passed a House Resolution, adopting rules for the 115th Congress.

Included in the rules package was the Holman Rule, a rule first introduced in 1876 but removed from the standing rules in 1983. The language of the rule allows Congress to propose amendments to an appropriations bill that would reduce the number of employees in a program or agency, and to reduce the “compensation of any person paid out of the Treasury of the United States.” Because there is no floor to the amount of reduction in pay or number of employees, the Holman rule allows Congress to amend a bill in order to eliminate a specific program, or reduce the salaries of specific government employees to virtually nothing.

As reported by the Washington Post, House Representative H. Morgan Griffith (R-Va.), stated that it was unlikely, “but not impossible,” that Congress would use the Holman Rule to cut away swaths of the federal workforce. “I can’t tell you it won’t happen,” Congressman Griffith told the Post. “The power is there.”

In the past, the Holman Rule permitted legislative provisions in general appropriation bills or amendments, an exception to the rule against changing existing law. In 1983, the Democrat-controlled 98th Congress, led by House Speaker Tip O’Neill, narrowed the Holman Rule, eliminating its ability to reduce the number and salary of officers of the United States or the compensation of individual employees, and allowing it only insofar as it reduced the amount of money covered generally by a bill.

But last week, the Republican-controlled 115th Congress brought back the two erstwhile provisions of the pre-1983 Holman Rule, restoring the rule to its pre-1983 incarnation. In so doing, the House enabled future use of provisions or amendments to bills passing through the House to strip specific federal employees of pay, or to cut specific government programs, eliminating the employees working within them.

In 1946, the Supreme Court heard a case, United States v. Lovett, 328 U.S. 303 (1946), regarding the use of the Holman Rule to strip specific federal employees, accused by a Congressman of subversive activity due to their political ideology, of their federal salaries. The House of Representatives, in that case, amended an appropriations bill to read that after November 15, 1943, no salary or compensation be paid to the specific employees, mentioned by name, by the Federal government unless those individuals were serving as jurors or in the armed forces. The Senate five times rejected the amendment, but the House insisted each time that it would not approve the appropriation bill without the amendment included. The Senate relented, and adopted the amendment. The President, Franklin D. Roosevelt, signed the bill, stating “The Senate yielded, as I have been forced to yield, to avoid delaying our conduct of the war. But I cannot so yield without placing on record my view that this provision is not only unwise and discriminatory, but unconstitutional.” Embroiled in World War II, the United States could not afford to go unfunded due to this dispute.

The Supreme Court disagreed with the United States Court of Claims, which held that Section 304 (the amendment) merely required a stoppage of routine disbursements of pay, leaving government agencies free to continue employing the employees, who could then collect their pay through claims against the government in the claims court. According to the Supreme Court, the purpose of the amendment was to “purge” the listed employees and “all future lists of Government employees of those whom Congress deemed guilty of ‘subversive activities’ and therefore ‘unfit’ to hold a federal job. What was challenged therefore is a statute which, because of what Congress thought to be their political beliefs, prohibited respondents from ever engaging in any government work, except as jurors and soldiers.”

The Supreme Court held that the amendment was unconstitutional, as it fell “precisely within the category of Congressional actions which the Constitution barred by providing that ‘no Bill of Attainder or ex post facto Law shall be passed.’” A bill of attainder is a “legislative act which inflicts punishment without a judicial trial. According to the Court, “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.” The Court went on to state that “[a]dherence to this principle requires invalidation of [the amendment]. We do adhere to it.”

Finding that the amendment clearly accomplished the punishment of named individuals without a judicial trial, the Court stated that merely cutting off the employees’ pay made the amendment “no less galling or effective than if it had been done by an Act which designated the conduct as criminal,” found the employees guilty of the crime of “subversive activities,” and perpetually excluded them from federal employment.

The Court went on to state that “[t]hose who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons, because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.” Affirming the finding that the employees must be paid, the Court stated that “[o]ur ancestors had ample reason to know that legislative trials and punishments were too dangerous to liberty to exist in the nation of free men they envisioned. And so they proscribed bills of attainder. [The amendment] is one. Much as we regret to declare that an Act of Congress violates the Constitution, we have no alternative here.”